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2023 DIGILAW 2656 (ALL)

New India Assurance Co. Ltd. v. Ran Vijay Singh

2023-11-24

J.J.MUNIR

body2023
JUDGMENT : (J.J. Munir, J.) 1. This is an appeal by the Insurance Company, arising out of a judgment and award passed by Mr. Arun Prakash, the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Kanpur Nagar in Claim Petition No.575 of 2009, dated 14.09.2011, partly allowing the claim petition. 2. The facts giving rise to the motor accident claim, subject matter of this appeal, are: On December, the 31st, 2008 between 6:00-7:00 in the morning hours, Ran Vijay Singh, the claimant was jogging down the Ramaipur Bharu Shahpur Majhawan Road. He was jogging on the side of the road. He was accompanied by Vinod Singh, a native of his village. A school bus, bearing Registration No. UP-53T-3894 approached from the Ramaipur side, driven at a high speed and negligently. The bus hit the claimant, leading him to sustain multiple fractures to his right lower limb, besides injury to other parts of his body. According to the claimant, he had passed his B.Sc. Examination in the year 2007, but being unemployed, had purchased milch cattle and was into the business of supplying milk. Apart from earning his livelihood this way, he would prepare to write various competitive examinations, leading to a possible employment. 3. After the accident, the claimant was taken to the Primary Health Centre Bidhnoo. Since his condition was serious, he was referred to the Regency Hospital, where he was admitted on 04.01.2009. After discharge, he was treated as an outdoor patient by Dr. Nadeem Faruqui for a few months. The claimant says that he has become handicapped because of the injury to his right lower limb. He has become non-ambulatory and cannot move about. His business of supplying milk is ruined. He cannot look after his milch cattle nor can he go to Ramaipur or the town to sell milk. Before the accident, he had an income of Rs.9000/-per mensem. For the purpose of treatment, besides whatever it involved in running about and eating a nourishing diet, he had to spend a sum of Rs.2 lacs approximately. The physical handicap, that has followed the accident, has given him extreme mental pain, besides physical, which are life long. It is impossible to compensate the injury. 4. An FIR regarding the accident was got lodged by the claimant's father at P.S. Bidhnoo. The physical handicap, that has followed the accident, has given him extreme mental pain, besides physical, which are life long. It is impossible to compensate the injury. 4. An FIR regarding the accident was got lodged by the claimant's father at P.S. Bidhnoo. This claim petition was instituted by Ran Vijay Singh before the Motor Accident Claims Tribunal/ The District Judge on 20.05.2009 and assigned to the Additional District Judge, Court No.2, Kanpur Nagar on 21.05.2009. Ran Vijay Singh, the sole claimant, who is respondent No.1 to this appeal, shall hereinafter be called 'the claimant'. Param Hans Ram Mangal Das Inter College, Sawayajpur, Narwal, District Kanpur Nagar, who are owners of the offending bus, were arrayed as opposite party No.1 to the claim petition and are impleaded as respondent No.2 to this appeal. They shall hereinafter be referred to as 'the owners'. 5. The offending vehicle was insured with the New India Assurance Company Limited, Civil Lines, Kanpur Nagar. They were arrayed as opposite party No.2 to the claim petition and are the appellants here. The appellant, Insurance Company aforesaid, shall hereinafter be called 'the insurers'. 6. A written statement was filed on behalf the owners on 25.11.2009, signed and verified by one Santosh Kumar Dwivedi, a person authorized on behalf of the owners to sign and verify pleadings. The owners generally denied the claimant's case and pleaded that the accident never happened. It was said that for the said reason, the income, dependency and other facts are all irrelevant and set up to establish a hefty claim. The owners also denied the registration of any criminal case against the bus driver. They also pleaded that even if it has been registered with the Police by resort to manipulation, the same is without basis. The owners also denied that their bus ever plied on the route indicated or the place where the accident occurred. It was never involved in the accident in question. Their further case is that the offending bus is insured with the insurers under Policy No. 420202/31/08/02/00000030, effective from 08.04.2008 to 07.04.2009. 7. In the additional pleas, it is averred by the owners that the offending bus was being driven by a driver possessed of a valid and effective driving licence at the relevant time and date. Therefore, if there is any claim provable against the owners, it has to be met by the insurers. 7. In the additional pleas, it is averred by the owners that the offending bus was being driven by a driver possessed of a valid and effective driving licence at the relevant time and date. Therefore, if there is any claim provable against the owners, it has to be met by the insurers. There is a particular plea in Paragraph No.11 to the effect that the offending bus is owned by a recognized institution and a registered society. It is not involved in any commercial activity. It ferries poor girl students to and fro from the college. It was also pleaded in the alternative that the claimant has put forward an exaggerated and inflated claim relating to his medical treatment, and, on that ground alone, the claim petition deserves to be dismissed. It is pleaded that the claimant has misdescribed his injuries and incorrectly alleged the amount of expenses incurred in his treatment. According to the owners, all these incorrect facts have been put forth to fetch a higher compensation. 8. Another written statement was filed on behalf of the insurers on 15.05.2010. The insurers have generally denied the claimant's case saying that the burden of proof rests on his shoulders to establish. The claimant's income being a sum of Rs.9000/-per mensem has been denied with a plea that there is no tangible evidence to prove it. It is also pleaded that the claimant's parents are said to be his dependents, but there is no proof that indeed they are so. It is averred that the claimant's right lower limb is said to have been fractured at three sites, but no positive proof about the fact has been offered by the claimant. It is also said by the insurers that the claimant alleges that he was treated by a doctor, but the identity of the doctor has not been revealed. In the absence of positive proof about it, the claim is not tenable. The insurers also say that though the identity of the owners has been disclosed, but in the absence of the insurance certificate relating to the bus being produced, the insurers do not accept their liability on the policy. The burden to prove the policy lies on the owners and the claimant. The claim is said to be one that is exaggerated and inflated. The claimant's story has been castigated as a concoction and one that is unbelievable. The burden to prove the policy lies on the owners and the claimant. The claim is said to be one that is exaggerated and inflated. The claimant's story has been castigated as a concoction and one that is unbelievable. 9. In the additional pleas, it is averred that no cause of action arose to the claimant to institute the claim petition. The insurers never had any information about the accident, because neither the owners nor the claimant intimated the insurers about it. It is pleaded that bearing in mind the description of the incident in the claim, it is evident that the entire case is concocted and founded on falsehood. The owners have violated the conditions of the insurance policy. The first breach pointed out is that the insurers were never intimated about the accident, whereas in accordance with the rules and the insurance policy, the Branch that had issued it, had to be intimated of the accident. It is also pleaded that the claimant and the owners appeared to have entered into a conspiracy, where the insurers would not bear responsibility to compensate. A plea is also raised that the insurers are entitled to the protection of Section 170 of the Motor Vehicles Act, 1988 (for short, 'the Act of 1988'). The insurers' further case is that it was the burden of the claimant as well as the owners to prove that on the date and time of the accident, the offending bus was validly registered, had a valid permit, a valid fitness certificate and other valid and effective documents permitting it to operate. The insurers have pleaded that the burden to produce the said documents lay on the claimant and the owners. If the owners and the claimant could not discharge that burden, or the papers produced, not found valid, the insurers would have no liability to satisfy the award. It is also pleaded that if the owners or the claimant establish the existence of a valid insurance policy, the owners would still have to show that he has complied with the provisions of Section 64-VB of the Insurance Act, 1938, and if they fail, the insurers would not be liable. There is also a plea that the accident happened because of the claimant's negligence. The claim petition is said to be bad for non-joinder, because the driver of the offending bus was not impleaded. 10. There is also a plea that the accident happened because of the claimant's negligence. The claim petition is said to be bad for non-joinder, because the driver of the offending bus was not impleaded. 10. On the pleadings of parties, the Tribunal framed the following issues (translated into English from Hindi): “1. Whether on 31st December, 2008 at about 6:00- 7:00 a.m., Ran Vijay Singh, who was jogging on the Ramaipur-Bharu-Shahpur Majhawan Road, was hit from rear by the driver of bus No. UP-53T-3894, driving it at a high speed and negligently, in consequence of which Ran Vijay sustained grievous injuries? 2. Whether on the date and time of the said accident, the aforesaid bus was insured with opposite party No.2, Insurance Company? 3. Whether on the date of the said accident, the driver of the aforesaid bus held a permit and fitness certificate? 4. Whether the driver of the aforesaid bus, on the date of the accident, held a valid and effective driving licence? 5. Whether the accident was the result of contributory negligence? 6. Whether the claimant is entitled to any compensation? If yes, how much and from which party?” 11. In support of his case, the claimant examined himself as PW-1 and Surendra Singh Chauhan as PW-2. The insurers examined Prateek Kumar Sinha as DW-1. The claimant filed through a list of documents Paper No.7-Ga1, a copy of the FIR and through list 11-Ga1, a copy of the insurance policy. He filed through another list bearing Paper No.15-Ga1, medical prescriptions of medicines bearing Page Nos.1 to 72. Another list 41-Ga carrying seven papers was filed on behalf of the claimant, which include copies of the charge-sheet, the site-plan, receipts evidencing purchase of buffaloes dated 07.08.2007, 14.08.2007, 14.08.2007, 14.08.2007 and 14.08.2007. Through another list Paper No.93-Ga1, another four documents were filed. 12. Issue No.1 was decided in favour of the claimant and against the owners and the insurers. Issue No.2 was decided in favour of the claimant and against the insurers. Issue No.3 was also decided in favour of the claimant and the owners and against the insurers. Issue No.4 was also decided in favour of the claimant and the owners and against the insurers. Issue No.5 was decided in favour of the claimant and against the owners and the insurers, holding that there was no contributory negligence by the claimant. Issue No.3 was also decided in favour of the claimant and the owners and against the insurers. Issue No.4 was also decided in favour of the claimant and the owners and against the insurers. Issue No.5 was decided in favour of the claimant and against the owners and the insurers, holding that there was no contributory negligence by the claimant. In deciding Issue No.6, the Tribunal held the claimant entitled to a compensation in the sum of Rs.5,34,048/-, and passed an award for the said sum of money, carrying simple interest @ 6% per annum. 13. Aggrieved by the impugned award, the insurers have preferred the present appeal. 14. Heard Mr. K.S. Amist, learned Counsel for the insurers, Mr. Utkarsh Pandey, Advocate holding brief of Mr. P.K. Sinha, learned Counsel for the owners and Mr. Vidya Kant Shukla, learned Counsel for the claimant. Records have been perused. 15. There are two issues alone that arise for consideration in this appeal. The first is if the Tribunal was right in holding that a school bus is exempt from the requirement of holding a permit and the insurers would be liable to indemnify. The other is if the finding of the Tribunal regarding the driver holding a valid and effective driving licence on the date of the accident is correct. 16. It is argued by the learned Counsel for the insurers that the Tribunal while passing the impugned award relied on the authority of a Bench decision of this Court in Catholic Diocese of Gorakhpur Education Society, Gorakhpur and another vs. State of Uttar Pradesh and another, (2001) 1 UPLBEC 915 , while deciding the twin issues against the insurers, relating to the validity of the driving licence and the non-requirement of holding a permit by a school bus. Insofar as the requirement of holding a permit is concerned, the learned Counsel for the insurers submits that under Section 66 (1) of the Act of 1988, no transport vehicle is permitted to ply without holding a permit issued by the competent authority. Insofar as the requirement of holding a permit is concerned, the learned Counsel for the insurers submits that under Section 66 (1) of the Act of 1988, no transport vehicle is permitted to ply without holding a permit issued by the competent authority. He has, particularly, emphasized that Clause (h) of Section 66(3) of the Act last mentioned, granting exemption from holding a permit to transport vehicles belonging to educational institutions recognized by the Central or State Government, and societies registered under the Societies Registration Act, 1860, or under any other law being used exclusively for their own purpose, was omitted vide Act No.27 of 2000 w.e.f. 11.08.2000. The accident here took place on 31.12.2008. Therefore, there was no exemption in favour of an educational institution or a registered society in the matter of their vehicle's obligation to ply without a valid permit issued by the competent authority. 17. It is next submitted that according to the owners' case, they were not using the vehicle for their own use, but had given it on hire to a charitable society for ferrying students. The submission is that even if Clause (h) of Section 66(3) of the Act of 1988 were not omitted, the exemption under the Act would not obtain. The Tribunal, according to the learned Counsel for the insurers, decided the issue in manifest error against the insurers. In support of his contention that the school bus in question was obliged to operate on a permit issued by the competent authority under the Act of 1988, the learned Counsel for the insurers has reposed faith in the authority of the Supreme Court in Amrit Paul Singh and another v. TATA AIG General Insurance Co. Ltd. and others, (2018) 7 SCC 558 . 18. So far as the other issue about the driver of the offending vehicle operating it without a valid licence is concerned, it is pointed out that the decision of the Tribunal placing reliance on Catholic Diocese of Gorakhpur Education Society (supra) is misplaced because the said decision is an authority on the issue of permit and not about the requirement of holding a valid driving licence. It is argued that it is apparent from the award that no driving licence was produced, and, according to the law laid down by the Supreme Court in Pappu and others v. Vinod Kumar Lamba and another, (2018) 3 SCC 208 , the initial burden would be upon the owner and the driver to produce the driving licence, so that the insurers may verify the same, and if no driving licence is filed, the insurers would not be liable. In that case, they would be given a right to pay and recover. The learned Counsel for the insurers on both counts has vehemently argued for a right to pay and recover. 19. The learned Counsel for the claimant and the owners have supported the impugned judgment and award. 20. So far as the requirement for a bus owned by an educational institution to ply without a permit is concerned, no doubt the Bench decision of this Court in Catholic Diocese of Gorakhpur Education Society is a direct authority in the owners' support, but the question is if the statute, on the foot of which the Division Bench opined in Catholic Diocese of Gorakhpur Education Society, has changed altogether so as to remove the basis of the decision. This Court notices that vide Section 4 of Act No.27 of 2000, which came into force on 11.08.2000, Clause (h) of Section 66(3) of the Act of 1988, was omitted. In order to understand the import of Clause (h) of sub-Section (3) of Section 66 of the Act of 1988, one has to look to the said provision as it stood before Clause (h) was omitted by Act No.27 of 2000. The unamended statute (relevant part) reads: “66. In order to understand the import of Clause (h) of sub-Section (3) of Section 66 of the Act of 1988, one has to look to the said provision as it stood before Clause (h) was omitted by Act No.27 of 2000. The unamended statute (relevant part) reads: “66. Necessity for permits.—(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. Provided also that where a transport vehicle has been issued any permit or permits, as well as a licence under this Act, such vehicle may be used either under the permit, or permits, so issued to it, or under such licence, at the discretion of the vehicle owner. (2) x x x (3) The provisions of sub-section (1) shall not apply— (a) to (g) x x x x (h) “[Omitted by Act 27 of 2000, S. 4 (w.e.f. 11-8- 2000)].” “to any transport vehicle owned by, and used solely for the purposes of, any educational institution which is recognised by the Central or State Government or whose managing committee is a society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India;”. 21. 21. There is no doubt that the Division Bench of this Court in deciding Catholic Diocese of Gorakhpur Education Society did so in a very different statutory context. The exemption that was available to a transport vehicle owned by and used solely for the purpose of an educational institution recognised by the Central or the State Government etc., was one under the statute that ceased to exist after Clause (h) was omitted vide Act No.27 of 2007. Thus, the very basis of the decision in Catholic Diocese of Gorakhpur Education Society stands effaced. Here, the accident happened admittedly on 31.12.2008, much after the statute was amended. Therefore, in our opinion, there was absolutely no basis for the Tribunal to have followed the Bench decision of this Court in Catholic Diocese of Gorakhpur Education Society and held against the insurers on this point. 22. The holding in Amrit Paul Singh (supra) that plying a transport vehicle without a permit amounts to a fundamental breach of the policy conditions needs to be noticed. It was held in Amrit Paul Singh: “18. The learned counsel for the appellants would submit that there has been no fundamental breach of the policy conditions. In this context, we may profitably refer to the decision in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] wherein a two-Judge Bench squarely dealt with the absence of a permit and ruled that plying a vehicle without a permit is an infraction and the insurer is not liable.” 23. But, in Amrit Paul Singh, it has been further observed: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and other cases pertaining to pay and recover principle.” 24. Therefore, while plying a transport vehicle without a permit indeed discharges the insurers of their obligation, following the decision of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 . The ‘pay and recover’ principle, however, ought to be invoked in order to safeguard interest of the unwary claimant and extend him the benefit of the social welfare legislation that the Act of 1988 is. Ltd. v. Swaran Singh, (2004) 3 SCC 297 . The ‘pay and recover’ principle, however, ought to be invoked in order to safeguard interest of the unwary claimant and extend him the benefit of the social welfare legislation that the Act of 1988 is. This Court is, therefore, of opinion that the Tribunal was in manifest error, in deciding Issue No.3 and holding that there was no requirement for a permit to be held by the offending bus, as it was owned by an educational institution. 25. The other finding by the Tribunal on Issue No.4, which is about the fact if the driver held a valid and effective driving licence. What this Court notices is that the Tribunal has virtually reproduced its finding on Issue No.3, in deciding Issue No.4. Issue No.4 is about the validity of the driving licence, if any, held by the driver of the offending vehicle on the date and time of the accident. However, the Tribunal decided the said issue against the insurers and in favour of the claimant and the owners, relying on the authority of a Bench decision of this Court in Catholic Diocese of Gorakhpur Education Society. The said authority had nothing to do with the issue of a valid driving licence. Apparently, the Tribunal went astray and without application of mind decided Issue No.4. There is nothing on record to show that a copy of the driving licence held by the driver of the offending bus was ever filed, either by the claimant or the owners. In the circumstances, following the principle laid down by the Supreme Court in Pappu (supra), the insurers cannot be held bound by terms of the policy. Of course, the omission to discharge their burden about bringing on record a photostat copy or a copy of the driving licence, the claimant would not be left in the uncertain alley of pursuing the owners alone for recovery of compensation. He will have the right to recover from the insurers in the first instance and the insurers the right to pay and recover; pay the claimant and recover from the owners and the driver, jointly and severally. It is held, accordingly. 26. No other ground or point was pressed by either side. 27. In the result, the appeal succeeds and is allowed in part. It is held, accordingly. 26. No other ground or point was pressed by either side. 27. In the result, the appeal succeeds and is allowed in part. The impugned award passed by the Tribunal is modified and it is ordered that the compensation awarded by the Tribunal shall, in the first instance, be recoverable from the insurers by the claimant, who will then be at liberty to recover it from the owners and the driver, jointly and severally, by making a miscellaneous application to the Tribunal for the purpose. The insurers would not be required to bring any independent action to recover. 28. There shall be no order as to costs.